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Ninth Circuit Says That "Paramour Preference" Is Not Sex Discrimination Under Title VII

By Camila Laval, J.D. on October 27, 2021 10:27 AM

The Ninth Circuit Court of Appeals recently held in Maner v. Dignity Health that Title VII of the Civil Rights Act does not prevent employers from exercising a preference for a female employee over a male employee because of workplace romance—a matter of first impression for the court. With this holding, it joins a majority of Circuit Courts which have rejected the "paramour preference" theory as a basis for sex-discrimination claims.

William Maner, a male lab researcher working under Dr. Robert Garfield, brought the case after he was terminated from Dignity Health following a funding crunch at the lab. Garfield had terminated another male employee, Dr. Dong, a year prior. Maner alleged that supervisor Garfield exercised an unlawful preference for a female researcher, Leili Shi, with whom the supervisor had a romantic relationship. The relationship had been ongoing since before Maner joined the lab.

The District Court granted summary judgment in favor of the employee, reasoning that favoritism of a romantic partner was not sex discrimination under Title VII. They borrowed reasoning from other circuits that had concluded that to expand the meaning of "sex" under the statute to include "sexual liaisons" and "sexual attractions" would be unwarranted because "the male plaintiffs did not suffer disparate treatment due to their sex" but rather were discriminated against because their supervisor favored his paramour—which would be "exactly the same predicament as that faced by any woman applicant for the promotion." On appeal, the Ninth Circuit agreed. Read both opinions and thousands more with a free trial of WestLaw Edge.

A Change of Sex Would Not Have Changed a Thing

The Ninth Circuit first asked itself if changing the terminated employee's sex would have changed the case's outcome; the answer was "no." The court posited that had Maner (or perhaps Dong) been a woman, Garfield would have still retained Shi as his employee after the funding shortage led him to terminate one or more of the researchers. Thus, Dong and Maner would have been terminated based on their status as not the paramours of the supervisor rather than their sex.

"Sex" Is Not "Sexual Activity"

Title VII prohibits employers from discharging individuals "because of such individual's race, color, religion, sex, or national origin." Maner argued that "sex" under the statute included "sexual activity." Per his argument, favoritism toward a supervisor's romantic partner would discriminate against other employees based on their sexual activity (or lack thereof).

While we may use the word "sex" to talk about sexual activity in everyday language, the Ninth Circuit held that the word had a different meaning under Title VII. The court concluded that the statute's use of the possessive "individual's" meant that "sex" was something individuals owned or possessed, rather than an activity in which an individual engaged.

Sex and Company

Finally, the Ninth Circuit relied on the common canon of statutory interpretation noscitur a sociis (legal Latin meaning "it is known by its associates") to determine the meaning of "sex" under Title VII. Under this principle, courts determine the meaning of an ambiguous term by looking at the words with which it is associated.

In this case, sex is one of five protected classes under Title VII. The other four classes are race, color, religion, and national origin. The Ninth Circuit noted that each of those four other classes referred to an individual's characteristics, not to an activity. Thus, the court concluded that "sex" could encompass "sexual activity," and that Maner did not have a case for unlawful discrimination under the statute.

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